John Kuntze

The applicants, property owners along Erie Shore Drive, appealed a decision of the Acting Drainage Referee regarding preliminary issues in their application for damages against the municipality for failing to maintain and repair the Burk Drainage Works.

The municipality cross-appealed the Referee's finding that section 79 of the Drainage Act is a strict liability provision.

The Divisional Court dismissed both appeals, upholding the Referee's findings that the applicants' initial notice was insufficient, that damages are limited to those occurring 45 days after proper notice is given, that historical seawalls had been lawfully replaced rather than abandoned, and that section 79 imposes strict liability without requiring proof of common law injurious affection.

The plaintiffs and defendant owned adjacent properties sharing a laneway subject to a right of way.

The plaintiffs relied on a catchbasin in the laneway for drainage.

The defendant's partner poured a concrete pad over the catchbasin, rendering it inoperable and causing significant flooding to the plaintiffs' property, which prevented them from renting out apartments.

The court found that the right of way included the right to use and maintain the drainage infrastructure.

The defendant's actions constituted a substantial interference and a nuisance.

The court ordered the reinstatement of the catchbasin, enjoined the defendant from blocking the laneway, and awarded the plaintiffs $100,000 in damages for lost rental income and repair costs.